-------- Original Message --------
Subject: [Patents] eWeek editorial
Date: Tue, 10 Jun 2003 21:05:23 +0100
From: James Heald <j.heald@ucl.ac.uk>
Reply-To: j.heald@ucl.ac.uk
To: patents@aful.org
The editorial in eWeek this week is fairly strongly anti-swpat, quoting
Gerald Cohen, veteran head of I-Builders in New York:
http://www.eweek.com/article2/0,3959,1122081,00.asp
Opinion
June 9, 2003
Patent Progress
There's a reason for the U.S. Patent and Trademark Office. It was
created to foster invention by rewarding inventors for their time and
trouble by granting temporary monopoly protection for the fruits of
their labor. The net result is a benefit to society: Rewarding inventors
tends to bring about more invention and economic productivity.
Because patent applications mandate disclosure, the patent process has
social advantages over trade-secret alternatives. However, if a given
law or enforcement pattern of a law—including patent law—results in harm
to society, then it's time to change the laws. Patents on software carry
the potential of harm to the software industry and thereby to the
economy. Equally problematic are the so-called method patents, or
patents on application behavior, such as Amazon's famous—or
infamous—one-click patent.
How dangerous are software patents? Information Builders President and
CEO Gerald Cohen warned eWEEK editors that the presence of patents is a
scourge to the industry. Cohen has seen much innovation in a patent-free
climate. Now he and other software leaders are being threatened with
lawsuits. Software companies need to create software, which, after all,
often has a short shelf life. They do not need to spend precious
resources hiring expensive attorneys. Copyright protection should be
enough. A copyright protects original expression; its existence
encourages software developers to seek new ways of presenting function
to users and of streamlining integration behind the scenes.
If patents for software are generally not a good idea, patents are out
of bounds when it comes to standard protocols, such as those that
underpin the World Wide Web. Keeping the Web patent-free prevents it
from becoming a hunting ground for those seeking royalties on some of
the most widely used software.
There are encouraging developments, however. The World Wide Web
Consortium's forthright stand on the issue sets an excellent example.
The W3C's intent has been known for a while, but only last month did the
organization issue a formal policy statement banning patented
technologies from its standards.
In addition, some unjustified patents have been thrown out. For example,
British Telecom claimed every organization using Web hyperlinks would
need to license a patent the U.S. PTO issued it in 1989. Last year, it
lost its test lawsuit against Prodigy Communications when U.S. District
Judge Colleen McMahon ruled that the patent didn't apply to hyperlinks.
In addition, three patents covering client/server computing as a whole
were ruled invalid by the courts in mid-2002 because the technology
described was in public use before the patent application was filed.
Thus, there are signs that a rational approach to software patents is
gaining momentum. Still, the PTO needs to do more to raise the bar for
software patents. If they are to be granted, software patents ought to
be extremely rare indeed.